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University of North Carolina School of Law
Mosteller, Robert P.



FALL 2011


Role of the judge:

1. Judge supposed to direct search for the truth (role of truth searcher)à Judge must remain neutral at all times. cannot assume role of advocate

a. participation cannot reach point where appears clear to jury that judge believes accused guilty, but no clear rule exists & each case viewed separately

i. very prejudicial to ∆

b. *Beaty: ∆ granted new trial bc judge gave prejudicial cross exam of ∆’s witness (w/leading questions, questioned about lying, questioned cred, etc) à expressed his own opinions (pg 8)

c. expressive conduct can also lead to reversal: ie shaking witness’s hand, telling jury he’s an old friend

2. allowed to call its own witnesses (614a), but this rarely occurs (don’t want to disrupt party’s strategy, some witnesses bad for party)

a. concern about destroying impartiality

b. if judge does call witness, both parties allowed to cross exam w/leading q’s

c. objections to TC’s calling of witness or interrogation MUST be made, but can wait until jury not present (don’t want prejud jury)

3. can interrogate witnesses under 614b: usual fxn is clarification when testimony difficult for jury to understand

a. Credibility generally not appropriate

i. Judge may not question credibility, may not impeach or rehabilitate, nor take over cross-examination, question witness about subject not raised with him; May not emphasize or de-emphasize any witness or testimony

b. May not show partiality: Judge’s questions must not demonstrate the court’s partiality in any matter; may not ask questions signaling belief or disbelief

Rule 104: Preliminary Questions of Admissibility: All decisions concerning the application of evidentiary rules are entrusted to TC unless Rule 104(b) applies

a. Qualification of witnesses

b. Privilege

c. Hearsay

2. under Rule 104(a), judges have authority to decide issues of admissibility: whether to admit evid & other prelim questions concerning qualification of person as witness, existence of privilege, hearsay, etc

a. in making this decision, not bound by rules of evid (except privlege)

b. decision made by prepond of evid

c. Burden of Proof: on preliminary issues, the party offering evidence has the burden of persuasion on preliminary issues

3. Admissibility hearings/decisions available under 104c: conducted as interests of justice require à can have “in limine” (at threshold) hearing outside jury’s presence to determine admissibility (ie does privilege apply)

a. Confessions: trial judge must hold a hearing out of the presence of the jury when ruling on the admissibility of a confession

i. conflict btw saving time and prejudicing jury

b. ∆’s testimony in prelim hearing cannot be cross exam’d re other issues

4. existence of privileges:

a. policy: encourage full & frank communication btw attny/clt, but need to determine whether privil exists

b. crime-fraud exception: privil’s secrecy doesn’t extend to communications made for purpose of getting advice for committing fraud/crime

c. *Zolin: permits in camera review of alleged privileged communications to determine if fall w/in crime-fraud exception

i. party requesting in camera review must make showing adeq to support good faith belief by reas person that review may reveal that exception appliesà can use any nonprivil evid to support request

5. Conditional evid under 104b: judge plays screening role: once admitted, then jury decides weight (Ex: in murder case by stabbing, knife found in ∆ ‘s possession admitted if evid offered connecting knife w/murder)

a. Standard: court must determine only if sufficient evidence has been introduced to support a finding of the fulfillment of the condition

i. when relevancy of evid depends on fulfillment of fact, judge determines if foundation evid sufficient for jury to reas find it relevant (evid must then be consistent w/FRE) à exception to 104a

b. 404b admissions: in similar acts admissions, court must determine whether evid is probative of material issue other than character (no prelim showing needed before evid introduced) à must only be relevant *see Huddleson

i. *Huddleson: court only needs to determine if there is sufficient evidence for the jury to find that Δ committed other acts (court need not make a prelim finding that Δ committed other act before submitting evidence to jury)

1. Acquittals may still be admitted; just means you aren’t guilty beyond a reasonable doubt

ii. while single piece of evid don’t prove something, combo might, but concern about jury punishing ∆ for other acts (min rule rq’s clear & convincing std)

6. Testimony by accused: Rule 104(d). Rule limits scope of cross-examination when a criminal Δ testifies on a preliminary matter.

a. Such testimony does not subject Δ to C-E about other issues in the case

7. Weight and Credibility: Rule 104(e). Once admitted, party can still refute reliability in front of the jury.

a. Crane v. Kentucky: Evidence surrounding the making of a confession bears on credibility as well as its voluntariness.

i. Voluntariness: 104(a).

ii. Credibility: 104(e).


Technical Legal Issues for Judge


Issues of Weight and Credibility for Jury

Privilege (500)

Authentication (900)

Opinions and Expert Testimony (700)

Relevance (400)

· Only some issues: conditional relevance and logical relevance

Hearsay (800)

Writings (1000)

· But 1008: three issues for jury

Role of jury:

1. jury decides weight accorded to evid: once judge admits evid, jury decides weight

2. questioning of witnesses by jury not authorized or prohibited: most circuits have allowed at least sometimes

a. No federal rule: TC has discretion to allow jury questioning (under Rule 611(a): court is to exercise reasonable control over the mode and order of interrogation)

i. great concern over compromising juror neutrality

b. Protective procedures should be followed: Jurors should submit their questions in writing to the judge; , judge should review questions with counsel outside presence of jury, who may then object; and court itself should ask approved questions to witnesses

3. party has right to introduce evid relevant to weight/cred before jury: while involuntary admissions inadmissible under constitutional stds, judge admitted ∆’s admission under 104a, ∆ then able to argue that some confessions less reliable than others (ie if coerced, undue influence bc police officers yelling at you)*Crane


Effect of erroneous ruling: under Rule 103a, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected (i.e., not harmless error) and the nature of error was called to att’n of judge by making of a specific and timely objection or an offer of proof.

1. Factors to determine harmless error

a. Whether erroneously admitted evidence was primary evidence relied on

b. Whether aggrieved party was nonetheless able to present substance of its claim

c. The existence and usefulness of curative jury instructions

d. The extent of jury argument based on tainted evidence

e. Whether erroneously admitted evidence was merely cumulative

f. Whether other evidence was overwhelming

Objections: with exception of plain errors affecting substantial rights, NO error on appeal can be based on admission of evid unless a timely objection to the evid was made at trial

1. specific objection required: under 103a1, the specific grounds for the objection must be stated at time its made, unless grounds are clear from context of objection

a. general objection doesn’t preserve error for review à must identify why objection made (ie “hearsay”) or the issue is forfeited (Counsel must indicate specifically which part of the evidence is objectionable)

b. classic objection that evid is incomp, irrelevant, & immaterial = stated w/o grounds

c. if TJ decides pre-trial that evid can be used for certain use, separate use of evid NOT covered by ruling and counsel must object to separate use (*Wilson: pretrial ruling admitting prior co

Plain Error – Rule 103(d): even if record is not made, appellate court may still reverse for “plain errors affecting substantial rights.”

1. Rationale: safeguard the right to a fair trial, notwithstanding counsel’s failure to object.

2. Standard: Must be obvious and very prejudicial. A rough guideline is:

1. An error;

2. That is clear and obvious under current law;

3. That affects the defendant’s substantial rights; and

4. That would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected.

2. Appellate Review of Admissibility Decisions.

a. Application of evidentiary rules: appellate courts use an abuse of discretion standard.

b. Interpretation of evidentiary rules: questions concerning interpretation of rules involves a de novo review by the appellate court.

Waiver Rules.

1. Required Testimony.

a. Rule: where motion in limine determines that prior conviction will be admissible to impeach Δ if he takes the stand, Δ must actually testify to preserve the issue for appeal. Luce v. United States.

i. Δ who does not testify at trial is not entitled to a review of a ruling denying his motion to forbid the use of impeaching evidence.

ii. Rationale: if the decision to admit is erroneous, appellate court can’t determine if it was harmless error.

b. Extending Luce: lower courts have extended Luce to situations outside of Rule 609 where the propriety of anticipated impeachment is challenged.

c. State courts: Some state courts have declined to follow Luce.

i. State v. Lamb (NC): erroneous decision to permit impeachment of Δ with bad acts was preserved for review in spite of Δ’s decision not to testify.

2. “Drawing the Sting.”

a. Rule: An accused who preemptively admits her prior conviction on direct examination (“drawing the sting”) may not challenge admissibility of that evidence on appeal. Ohler v. United States.

b. Ohler is ruling on procedure, not constitutional issuesà not binding on states.

3. Invited Error.

a. No reversible error where introduction of allegedly inadmissible evidence is attributable to the party seeking to exclude that evidence.

b. Invited error must be more than mere acquiescence in the trial judge’s erroneous conclusion.

Preliminary Questions:

1. Questions of competency: usually, these questions (ie qualification of witness or existence of privilege) are matters for TC to determine as questions of fact

a. Under 104a, in deciding on competency of evid, TC not bound by rules of evid except those w/respect to privileges

2. Relevancy conditioned on fact: offered evid is admitted upon or subject to introduction of evid sufficient to support a finding of existence of needed add’l fact

a. Ie evid of letter may not be relevant unless there is some proof that ∆ actually received it; evid of letter’s existence can be admitted either upon (1) finding by TC that suff evid in record that jury could fin that ∆ received letter or (2) the statement of counsel that such evid will be introduced

Hearings on objections: to extent possible, all hearings on admissibility of evid should be outside hearing of jury to prevent inadmissible evid from being suggested to jury

1. Under 104c, hearings on admissibility of confessions and (when requested by accused) hearings where crim accused is to be witness must be outside hearing of jury